Citation Nr: 1015625
Decision Date: 04/28/10 Archive Date: 05/06/10
DOCKET NO. 07-07 537 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for posttraumatic
stress disorder (PTSD) for purposes of accrued benefits.
2. Entitlement to service connection for the cause of the
Veteran's death.
REPRESENTATION
Appellant represented by: Illinois Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Elizabeth Jalley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1966 to
October 1975. He died in April 2005, and the appellant is
his surviving spouse.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.
In February 2009, the Board remanded this claim for
additional development, and the claim has been returned to
the Board for further review.
The issue of entitlement to service connection for the cause
of the Veteran's death is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A claim of entitlement to service connection for PTSD was
pending at the time of the Veteran's death in April 2005.
2. Resolving the benefit of the doubt in favor of the
appellant, evidence in the file on the date of death
demonstrates that the Veteran had PTSD that was medically
attributed to a confirmed in-service stressor.
CONCLUSION OF LAW
The criteria for entitlement of the appellant to accrued
benefits for PTSD have been met. 38 U.S.C.A. § 1110, 1131,
5121 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.1000
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants. When VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and the representative, if any, or any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
It appears in this case that all obtainable evidence
identified by the appellant relative to her claim has been
obtained and associated with the claims folder, and that
records on file are sufficient to resolve the matter in the
appellant's favor. Any defect regarding VCAA must be
considered harmless given the favorable action taken herein
below.
II. Accrued Benefits
Applicable law and regulations provide that, upon the death
of a veteran or beneficiary, periodic monetary benefits to
which that individual was entitled at death under existing
ratings or decisions, or those based on evidence in the file
at the date of his/her death (accrued benefits) and due and
unpaid shall, upon the death of such individual, be paid to
the specified beneficiaries, the first of which is the
veteran's spouse. 38 U.S.C.A. § 5121(a); 38 C.F.R. §
3.1000(a). A claim for such benefits must be filed within
one year of the veteran's death. 38 C.F.R. § 3.1000(a), (c)
(2009).
In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the
Federal Circuit concluded that, for a surviving spouse to be
entitled to accrued benefits, 'the veteran must have had a
claim pending at the time of his death for such benefits or
else be entitled to them under an existing rating or
decision.' See also Zevalkink v. Brown, 102 F.3d 1236 (Fed
Cir. 1996) (a consequence of the derivative nature of the
surviving spouse's entitlement to a veteran's accrued
benefits claim is that, without the veteran having a claim
pending at time of death, the surviving spouse has no claim
upon which to derive his or her own application).
The term 'pending claim' means an application, formal or
informal, which has not been finally adjudicated. 38 C.F.R.
§ 3.160(c) (2009). The term 'finally adjudicated claim'
means an application, formal or informal, which has been
allowed or disallowed by the agency of original jurisdiction,
the action having become final by the expiration of one year
after the date of notice of an award or disallowance, or by
denial on appellate review, whichever is earlier. 38 C.F.R.
§ 3.160(d) (2009); see also 38 C.F.R. §§ 20.1103, 20.1104
(2009).
In March 2005, the St. Louis RO denied the Veteran's claim of
entitlement to service connection for PTSD. The Veteran died
in April 2005, before the claim could become finally
adjudicated. In May 2005, the appellant submitted a claim
for any accrued benefits. The Board thus finds that the
Veteran had an open claim for PTSD at the time of his death,
and that the appellant filed a claim for accrued benefits
within one year of the Veteran's death.
In adjudicating the claim for accrued benefits, the Board may
only consider evidence in the file at the time of the
Veteran's death. 'Evidence in the file at date of death'
includes evidence in VA's possession on or before the date of
the veteran's death, even if such evidence was not physically
located in the VA claims folder on or before the date of
death, in support of a claim for VA benefits pending on the
death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(d)(4).
The Court of Appeals for Veterans Claims has stated that
certain documents may be deemed as constructively of record
in an accrued benefits claim, even though physically absent
from the record on the date of death. Hayes v. Brown, 4 Vet.
App. 353, 360-361 (1993). In Hayes, the Court interpreted
the interplay between 38 U.S.C.A. § 5121(a), 38 C.F.R. §
3.1000(d)(4)(i), and several provisions of VA's Adjudication
Manual, M21-1 (which has since been revised, in a manual
rewrite, as M21-1MR) as providing, in summary, that post-
death evidence which may be considered in accrued benefits
claims as being in the file includes the following: (1)
government records and records generated by or in VA control
and which could reasonably be expected to be a part of the
record; (2) evidence accepted after death for the purpose of
verifying or corroborating evidence in file (which is no
longer set forth in section 3.1000 or M21-1MR); and (3)
hospital or examination reports that may be deemed to be
included in the term VA examination (within the meaning of 38
C.F.R. § 3.327(b)(1), which is also no longer in effect).
Review of the current VA Manual M21-1MR discloses that Part
VIII, Chapter 1, addresses eligibility for accrued benefits,
and that Part VIII, Chapter 3, addresses securing sufficient
evidence for accrued benefit claims. In this regard, M21-
1MR, Part VIII, Chapter 3.1.f., provides that there are
certain government documents to be considered as being in the
file at date of death even though actually put into the file
after the date of death, and that the following evidence must
be obtained and placed in the claims folder before an accrued
benefits claim is decided, even if the reports were not
reduced to writing or are not physically placed in the claims
folder until after death: service department records; reports
of VA hospitalization; reports of hospitalization, treatment,
or examinations authorized by VA; and reports of autopsy made
on the date of death.
Since the date of the Veteran's death, VA medical records
that were not located in the claims file at the time of the
Veteran's death have been associated with the claims folder.
Because these records are of a type that are considered as
being in the file at the date of death, the Board may
consider these records in deciding the Veteran's claim.
However, it follows from the applicable regulations in effect
during the pendency of this appeal and the provisions of the
M21-1MR that the appellant cannot furnish additional evidence
that could be used to substantiate her claim. Nor can VA
develop additional evidence such as a medical opinion with
respect to the claim of entitlement to accrued benefits. The
Board will thus consider the merits of the claim for service
connection for PTSD based on the evidence of record at the
time of the Veteran's death. See 38 C.F.R. § 3.1000 (2009).
Establishing service connection for PTSD currently requires:
(1) medical evidence diagnosing PTSD in accordance with 38
C.F.R. § 4.125 (for VA purposes, all mental disorder
diagnoses must conform to DSM-IV); (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a link between current
symptomatology and the claimed in-service stressor. 38
C.F.R. § 3.304(f) (2009); see Cohen v. Brown, 10 Vet. App.
128 (1997).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. See 38 C.F.R. § 3.304(f)(1) (2009); see also, 38
U.S.C.A. § 1154(b) (West 2002 & Supp. 2009). Otherwise, the
law requires verification of a claimed stressor.
The ordinary meaning of the phrase 'engaged in combat with
the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a
veteran have participated in events constituting an actual
fight or encounter with a military foe, or hostile unit or
instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Mere
service in a combat zone does not establish that a veteran
engaged in combat with the enemy. Id. Furthermore, it has
been established that the mere presence within a combat zone
is not a sufficient stressor for a diagnosis of PTSD. See,
e.g., Zarycki v. Brown, 6 Vet. App. 91, 99 (1993) (holding
that a veteran seeking service connection for PTSD may not
rely on mere service in a combat zone to support a diagnosis
of PTSD, but requiring a specific incident during service).
Service department evidence that a veteran engaged in combat
or that a veteran was awarded the Purple Heart Medal, Combat
Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor.
VAOPGCPREC 12-99 (Oct. 18, 1999).
Where a determination is made that the veteran did not
'engage in combat with the enemy,' or the claimed stressor is
unrelated to combat, the veteran's lay testimony alone will
not be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such
cases, the record must include service records or other
credible evidence that supports and does not contradict the
veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289
(1994). Moreover, a medical opinion diagnosing PTSD does not
suffice to verify the occurrence of the claimed in-service
stressors. See Moreau, 9 Vet. App. at 395-396.
In the case at hand, there is no dispute as to whether the
Veteran had a valid PTSD diagnosis that was made in
accordance with the applicable DSM-IV criteria at the time of
his death. The highly-probative July 2004 VA examination
report diagnoses PTSD and links this disability to the
Veteran's experiences in Vietnam while in-service.
Therefore, in order to establish that the Veteran was
entitled to service connection for PTSD at the time of his
death, and to thereby establish the appellant's entitlement
to accrued benefits, the evidence of record at the time of
the Veteran's death must reflect the Veteran's participation
of combat in service or the presence of a verified in-service
stressor.
According to an August 2004 statement, the Veteran's claimed
stressors involve his service in Vietnam. One such incident
occurred in approximately December 1968 when the Bien Hoa
compound was attacked by rockets and mortars and overrun with
Vietnamese during the Tet Offensive. At his July 2004 VA
examination, the Veteran recalled that a number of his
friends were killed in this attack, and that he had to go out
and pick up the bodies in the field and on the wire
surrounding their compound.
Review of the Veteran's service personnel records reveals
that he served in Vietnam from December 1967 to December 1968
and from April 1970 to December 1971. His military
occupational specialties (MOS) at these times were power
generator equipment operator mechanic and radio relay and
carrier operator. The Veteran received various decorations,
including the Army Commendation Medal and the Bronze Star
Medal; however, the Board notes that without a 'V' device,
combat participation is not presumed based solely on receipt
of the Army Commendation Medal or Bronze Star Medal. See
M21-MR, IV.ii.1.D.13.d.
The Board further notes that a personnel inquiry form lists
the Veteran's "last combat tour" as having occurred in
Vietnam and completed in December 1971. This does not
necessarily indicate that the Veteran himself participated in
combat and may merely reflect that the Veteran served in a
combat zone. As noted above, service in a combat zone is
not, by itself, a stressor for purposes of establishing
service connection for PTSD.
The Veteran's service treatment records contain records that
are highly pertinent to establishing whether the Veteran
participated in combat during service. The first of these is
a July 1972 service treatment record that diagnoses the
Veteran with chronic anxiety and notes that the Veteran has
had trouble with nervousness off and on for the last six
years. The Veteran reported that these symptoms have been
worse in the past year since his service in Vietnam.
Second, the Board notes that a May 1975 service treatment
record reflects that the Veteran "sustained some fragment
wounds in Vietnam without sequela." While the remaining
service treatment records do not clarify how the Veteran
received these wounds, the use of the term "fragment
wounds" implies "shell fragment wounds," which would
suggest combat.
Finally, the Veteran reported no history of or current
"nervous trouble of any sort" on his January 1966 entrance
medical history report, while he affirmatively reported
having past or current "nervous trouble of any sort" on his
Chapter 10 medical history report from September 1975.
The Board finds that, when read together, these documents are
sufficient to reasonably verify that the Veteran engaged in
combat during service. The Board also finds that the
stressors as described by the Veteran are consistent with the
circumstances, conditions, or hardships of the Veteran's
service. See 38 C.F.R. § 3.304(f)(1) (2009); see also, 38
U.S.C.A. § 1154(b) (West 2002 & Supp. 2009). Thus, resolving
benefit of the doubt in favor of the appellant, the Board
finds that the Veteran's lay testimony regarding his in-
service stressors may establish the occurrence of these
stressors. As suggested above, the Board also finds that the
July 2004 VA examination report competently and probatively
links the Veteran's combat-related military stressors to his
subsequent PTSD.
In short, the Board finds that, resolving benefit of the
doubt in favor of the appellant, entitlement to accrued
benefits based on service connection for PTSD is warranted.
ORDER
Entitlement to service connection for PTSD for purposes of
accrued benefits is granted.
REMAND
The appellant has also claimed entitlement to service
connection for the cause of the Veteran's death.
To establish service connection for the cause of death, the
evidence must show that a disability that was incurred in or
aggravated by service, or which was proximately due to or the
result of a service-connected condition, was either a
principal or contributory cause of death. 38 U.S.C.A. §
1310; 38 C.F.R. § 3.312(a). For a service-connected
disability to be the principal cause of death, it must
singularly or jointly with some other condition be the
immediate or underlying cause of death, or be etiologically
related thereto. 38 C.F.R. § 3.312(b). For a service-
connected disability to be a contributory cause of death, it
must be shown that it contributed substantially or
materially, that it combined to cause death, or aided or lent
assistance to the production of death. 38 C.F.R. § 3.312(c).
Generally, minor service-connected disabilities, particularly
those of a static nature or not materially affecting a vital
organ, would not be held to have contributed to death
primarily due to unrelated disability. In the same category
there would be included service-connected disease or injuries
of any evaluation (even though evaluated as 100 percent
disabling) but of a quiescent or static nature involving
muscular or skeletal functions and not materially affecting
other vital body functions. Service-connected diseases or
injuries involving active processes affecting vital organs
should receive careful consideration as a contributory cause
of death, the primary cause being unrelated, from the
viewpoint of whether there were resulting debilitating
effects and general impairment of health to an extent that
would render the person materially less capable of resisting
the effects of other disease or injury primarily causing
death. Where the service-connected condition affects vital
organs as distinguished from muscular or skeletal functions
and is evaluated as 100 percent disabling, debilitation may
be assumed. 38 C.F.R. § 3.312(c)(2)(3).
According to a March 2009 statement, the appellant in the
case at hand essentially contends, in pertinent part, that
the Veteran's death was a result of his PTSD. An August 2007
letter from a private physician found it clear that, based on
the available information from VA records, the Veteran
suffered from severe to extreme PTSD. He opined that "While
the primary cause of death is noted as cardiopulmonary
failure, contributing factors from PTSD, such as stress and
anxiety, were more likely than not, very prominent factors in
causing the cardiopulmonary failure."
On the other hand, an October 2005 entry in the Veteran's VA
medical records reflects that a VA physician stated that
"PTSD is not known to weaken the heart." The physician
reviewed the Veteran's medications and could not find any
that would have an effect on the heart.
The Board notes that no VA medical opinion has been sought by
the RO with respect to whether the Veteran's PTSD was a
principal or contributory cause of his death. Given that
service connection for PTSD for purposes of accrued benefits
has been established herein, and given that the private
physician's August 2007 is supportive of the appellant's
claim, the Board finds that a remand for a medical opinion is
warranted. See McLendon v. Nicholson, 20 Vet. App. 79
(2006).
Accordingly, the case is REMANDED for the following action:
1. Forward the claims file to a physician
with the requisite expertise to determine
whether the Veteran's service-connected
PTSD either caused or contributed
substantially or materially to the
Veteran's death. The claims folder and a
copy of this remand should be forwarded to
the physician for review, and the
physician's report should reflect that
such review was undertaken. The physician
should provide an opinion as to whether it
is more likely than not (i.e., probability
greater than 50 percent), at least as
likely as not (i.e., probability of 50
percent), or less likely than not (i.e.,
probability less than 50 percent) that
PTSD contributed substantially or
materially to the Veteran's death,
combined to cause death, aided or lent
assistance to the production of his death,
or had a material influence in
accelerating death due to cardiopulmonary
failure.
The reviewing physician should
specifically comment on whether there is
any evidence of debilitating effects and
general impairment of health due to PTSD
that would render the Veteran materially
less capable of resisting the effects of
cardiopulmonary failure. A detailed
rationale, including pertinent findings
from the record, should be provided for
all opinions. If any of the above issues
cannot be determined on a medical
scientific basis and without invoking
processes related to guesses or based upon
mere conjecture, the reviewing physician
should clearly and specifically so specify
in the medical opinion, with an
explanation as to why this is so.
2. After the development requested above
has been completed, again review the
record. If any benefit sought on appeal
remains denied, the appellant and her
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to
the Board, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs